John Gash v. Ruby Brangers as Administratrix for the Estate of Anthony Brangers, Sr. ( 2021 )

RENDERED: OCTOBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0702-MR
JOHN GASH AND ALLEN
ELECTRIC, INC. APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 17-CI-001462
RUBY BRANGERS, AS
ADMINISTRATRIX FOR THE
ESTATE OF ANTHONY BRANGERS,
SR. APPELLEE
AND
NO. 2019-CA-0739-MR
RUBY BRANGERS, AS
ADMINISTRATRIX FOR THE
ESTATE OF ANTHONY BRANGERS,
SR. CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 17-CI-001462
JOHN GASH AND ALLEN
ELECTRIC, INC. CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, McNEILL, AND L. THOMPSON, JUDGES.
McNEILL, JUDGE: John Gash and Allen Electric, Inc. (“Gash”) appeal from a
judgment of the Jefferson Circuit Court entered on April 3, 2019, awarding
$107,070.56 to Anthony Brangers, Sr. (“Brangers”) following a jury trial. Ruby
Brangers,1 as Administratrix for the Estate of Anthony Brangers, Sr. (“the Estate”)
cross-appeals from the same judgment. For the following reasons, we affirm.
FACTS
On November 26, 2012, Brangers was driving home after work on I-
264 in Louisville when he came upon rush hour traffic near the I-65 exit. Brangers
was in the second to right lane, attempting to take the exit to I-65 South. Brangers
testified that before you get to the I-65 exit, there is a rise in the highway which
1
Anthony Brangers, Sr. died on April 30, 2019. Ruby Brangers was appointed administratrix of
his estate on July 22, 2019. On November 14, 2019, Ruby Brangers, in her capacity as
administratrix, was substituted as a party for Appellee/Cross-Appellant Anthony Brangers, Sr. by
order of this Court.
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you cannot see over. As he got to the top of the rise, he noticed that traffic was
“slow and backing up” ahead and “gridlocked.”
Directly in front of Brangers, a car was completely stopped. Brangers
slowed and came to a complete stop, leaving a vehicle’s width between his Ford F-
150 and the car in front of him. Brangers testified that traffic was moving slowly
to his left but was pretty much at a standstill. Once stopped, Brangers glanced into
his rearview mirror and saw a car come up behind him. Brangers remembers being
stopped for less than a minute when his vehicle was hit from behind. He did not
see the accident happen. At the time of the accident, Brangers was waiting for
traffic in front of him to move so that he could exit onto the I-65 ramp.
Gash was also traveling on I-264 in the second to right lane in the
minutes leading up to the accident. Gash testified he was attempting to get into the
far-right lane to take the exit to I-65 North and estimated he was traveling between
35-40 miles an hour, trying to maintain speed with the cars in the right lane so that
he could safely merge. Because his work van did not have a rearview mirror, he
was glancing back and forth between the traffic ahead and his side mirror while
attempting to merge.
Gash did not notice the vehicles stopped ahead of him until it was too
late. His vehicle collided with the vehicle in front of him which in turn hit
Brangers’ vehicle. Gash agreed there were at least two vehicles stopped directly in
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front of him, although he believed the other lanes of traffic were moving. Gash
conceded that the lane to exit onto I-65 South often backs up during rush hour and
that he was aware traffic could stop in front of him at any time. While he testified
he was not anticipating a full, complete stop in the road, he nevertheless admitted
the wreck could have been avoided had he been looking ahead and seen the
vehicles stopped.
Following the accident, Brangers complained of head, neck and back
pain and was diagnosed with a neck and back strain. He underwent conservative
treatment in the form of physical therapy. When his symptoms did not improve,
Brangers visited Chambers Medical Group and was again diagnosed with neck and
back strains. He had an MRI performed and did more physical therapy. After the
MRI showed multilevel degenerative disc disease, Brangers began treatment with
an orthopedic surgeon who administered steroid injections.
While the steroid injections provided temporary relief, Brangers
sought further treatment from Dr. Christopher Shields, a neurosurgeon, on July 30,
2013. Dr. Shields performed more diagnostic testing and after further treatment
did not relieve Brangers’ symptoms, recommended that Brangers undergo surgery
to address his degenerative disc disease. Brangers’ surgery was scheduled for
April 14, 2015 but was cancelled on the day of surgery after complications with
anesthesia. After the failed surgery, Brangers did not seek any further treatment.
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Following the evidence, the trial court directed a verdict in favor of
Brangers on the issue of Gash’s liability for the accident. The trial court also
directed a verdict on $42,070.56 of Brangers’ medical expenses. The jury then
considered the remaining items of damages and awarded Brangers $95,000.00 in
pain and suffering. On April 3, 2019, the trial court entered a judgment against
Gash for $107,070.56 plus interest. This appeal followed. Further facts will be set
forth as necessary below.
ANALYSIS
As an initial matter, Gash’s appellate brief did not cite to where in the
record his arguments were preserved as required by CR2 76.12(4)(c)(v). Gash has
attempted to remedy this in his reply brief as is allowed by case law, Hollingsworth
v. Hollingsworth, 798 S.W.2d 145, 147 (Ky. App. 1990); however, CR
76.12(4)(b)(i) limits a combined appellant’s reply/cross-appellee brief to thirty
pages. While Gash’s brief complies with the letter of the rule’s 30-page limit, 25
pages of Gash’s brief are a substantive reply to the appellee’s brief and only three
are devoted to Brangers’ cross-appeal, seemingly violating the spirit of CR
76.12(4)(b)(i) when read in conjunction with its five-page limit on reply briefs.
However, because Gash’s combined appellant’s reply/cross-appellee brief
technically complies with the rule, we will resolve this case on the merits.
2
Kentucky Rules of Civil Procedure.
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Gash first argues the trial court erred in directing a verdict as to his
liability and Brangers’ non-liability for the accident, failing to view the evidence in
the light most favorable to him. He points to his trial testimony that he was
operating his vehicle with reasonable care, looking back and forth between the
traffic ahead and his side mirror as he was attempting to change lanes. He also
notes he was traveling well below the speed limit.
Gash also argues there is a jury question as to whether Brangers was
operating his vehicle in a reasonable manner by stopping on the interstate. He
notes Brangers’ testimony that he stopped when he saw the traffic ahead because
he “did not want to get into that mess,” apparently leaving enough room between
his vehicle and the one in front of him that another car was able to pass in between.
Gash also argues that “the jury could have found that . . . [Brangers] came to an
inappropriate/prolonged stop,” pointing to Brangers’ testimony that the car in front
of him had moved on prior to the accident.
The standard of review for an appeal of a directed verdict has been
stated as follows:
A trial judge cannot enter a directed verdict unless . . .
there are no disputed issues of fact upon which
reasonable minds could differ. Where there is conflicting
evidence, it is the responsibility of the jury to determine
and resolve such conflicts. A motion for directed verdict
admits the truth of all evidence favorable to the party
against whom the motion is made. Upon such motion,
the court may not consider the credibility of evidence or
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the weight it should be given, this being a function
reserved for the trier of fact. The trial court must favor
the party against whom the motion is made, complete
with all inferences reasonably drawn from the evidence.
The trial court then must determine whether the evidence
favorable to the party against whom the motion is made
is of such substance that a verdict rendered thereon
would be “palpably or flagrantly” against the evidence so
as “to indicate that is was reached as a result of passion
or prejudice.” In such a case, a directed verdict should be
given. Otherwise, the motion should be denied.
It is well-argued and documented that a motion for
directed verdict raises only questions of law as to
whether there is any evidence to support a verdict. While
it is the jury’s province to weigh evidence, the court will
direct a verdict where there is no evidence of probative
value to support the opposite result and the jury may not
be permitted to reach a verdict based on mere speculation
or conjecture.
Gibbs v. Wikersham, 133 S.W.3d 494, 495-96 (Ky. App. 2004) (citations omitted).
Having reviewed the record, we cannot say the trial court erred in
granting a directed verdict in favor of Brangers as to Gash’s liability for the
accident or as to Brangers’ non-liability. In granting the directed verdict, the trial
court found that either because of inattention or looking away too long, Gash was
unable to avoid hitting the stopped cars due to his speed. The court noted that,
unlike Gash, both Brangers and the car behind him were able to safely stop. In
making its determination, the court acknowledged Gash’s testimony that he
reduced his speed from an estimated 40-50 miles an hour to an estimated 35 miles
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an hour as he entered the congested area. Thus, the trial court viewed the evidence
in the light most favorable to Gash.
However, even granting Gash all reasonable inferences, Gash testified
he was aware the lane exiting onto I-65 South often backs up at rush hour and
admitted the accident could have been avoided had he been looking ahead the
entire time, or had he not been attempting to merge. Further, and as the trial court
noted, both Brangers and the car behind him were able to safely stop, suggesting
Gash was not operating his vehicle at a reasonable speed considering the
circumstances. A directed verdict is proper “where there is no evidence of
probative value to support the opposite result . . . .” Gibbs, 133 S.W.3d at 496.
Here, there was no evidence of any negligence on Brangers’ part.
Brangers testified he was driving in the second to right hand lane which exited
onto to I-65 South. When he came over a rise in the highway he noticed traffic
congestion ahead and a car stopped in front of him. Even assuming the vehicle had
moved on in some moment before the accident, Brangers testified he still could not
move forward because the exit ramp was full. Gash has cited no authority, nor is
this Court aware of any, imputing any liability for a rear-end collision in a fact
scenario such as this.
Like the trial court, we believe the cases cited by Gash are
distinguishable as all involve sudden emergencies. In his brief, Gash particularly
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relies upon USAA Casualty Insurance Company v. Kramer, 987 S.W.2d 779 (Ky.
1999). In that case, defendant’s vehicle struck plaintiff’s vehicle from behind
while plaintiff was stopped at a traffic light. Defendant had been in the left, inside
lane attempting to merge into the right lane to turn at an upcoming intersection
when he noticed plaintiff’s car slowing for an upcoming traffic light. As defendant
attempted to merge, a car pulled out into the right lane in front of him from a
nearby parking lot. Unable to avoid the vehicle in the right lane, defendant
swerved back into the left lane and noticed plaintiff’s vehicle had stopped.
Defendant tried to swerve back right to avoid plaintiff’s vehicle but hit the right
rear of her vehicle.
At trial in Kramer, the jury returned a verdict in favor of the
defendant. On appeal, a panel of this Court held that plaintiff was entitled to a
directed verdict as to defendant’s liability. On discretionary review, our Supreme
Court reversed, holding the Court of Appeals had not viewed the evidence in the
light most favorable to the defendant, and that when so viewed, “it cannot be said
that [defendant] was negligent as a matter of law.” Kramer, 987 S.W.2d at 782.
Gash argues “Kramer is especially instructive . . . [there], the trial
court properly submitted the issue of fault to jury, which then exonerated the rear
ending driver who, like Mr. Gash, was checking his mirrors in an attempt to merge
and did not perceive a situation developing in front of him.” However, unlike in
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Kramer, here, Gash should have perceived the situation in front of him. That is the
distinction implicitly recognized by the trial court separating this case from those
involving a sudden emergency.
Gash testified that it was common for the I-65 ramp to be congested
during rush hour. Thus, he should have been aware that he might encounter
slowed or stopped traffic as he approached the exit. While he did reduce his speed,
he was still traveling at the speed of traffic in the lane next to him. Even viewing
the evidence in the light most favorable to Gash, his admissions that the lane to I-
65 South could back up at any time, that he was going 35 miles an hour, and that
he was not focused on the road ahead of him because he was attempting to merge
were all undisputed facts. The trial court held Gash’s failure to reduce his speed
and/or focus on the road in front of him, knowing the potential for traffic
congestion, was a violation of ordinary care as a matter of law. This finding was
not clearly erroneous. Combs v. Stortz, 276 S.W.3d 282, 290 (Ky. App. 2009)
(citation omitted) (“A reviewing court may not disturb a trial court’s decision on a
motion for directed verdict unless that decision is clearly erroneous.”).
Gash next contends the trial court erred in directing a verdict as to
$42,070.56 of Brangers’ medical expenses, arguing disputed issues of fact exist as
to the relatedness of the expenses. However, during the bench conference
discussing Brangers’ motion for directed verdict, Gash’s counsel agreed these
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expenses were related to the motor vehicle accident. Instead, he argued the
relatedness of the medical expenses was still an issue for the jury, because the jury
was entitled to believe or disbelieve the expert witness testimony as to relatedness,
even if that testimony was uncontradicted. Gash never argued, as he does on
appeal, that there was a genuine dispute as to the relatedness of the medical
expenses. Therefore, we find this argument is not preserved for our review.
“When a trial court never has the opportunity to rule on a legal question presented
to an appellate court, an appellant presents a different case to the appellate court
than the one decided by the trial court.” Norton Healthcare, Inc. v. Deng, 487
S.W.3d 846, 852 (Ky. 2016) (citing Kennedy v. Commonwealth, 544 S.W.2d 219,
222 (Ky. 1976) (prohibiting appellant’s “feed[ing] one can of worms to the trial
judge and another to the appellate court”)). “The proper role for an appellate court
is to review for error–and there can be no error when the issue has not been
presented to the trial court for decision.” Norton, 487 S.W.3d at 852.
However, Gash did argue below, and has on appeal, that a directed
verdict was improper because the jury was entitled to disbelieve the expert witness
testimony that Brangers’ medical expenses were related to the motor vehicle
accident. In support, he cites Rippetoe v. Feese, 217 S.W.3d 887 (Ky. App. 2007);
Lewis v. Grange Mutual Casualty Company, 11 S.W.3d 591 (Ky. App. 2000);
Carlson v. McElroy, 584 S.W.2d 754 (Ky. App. 1979); and Rogers v. Belluscio,
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No. 2006-CA-001804-MR, 2007 WL 3037722 (Ky. App. Oct. 19, 2007). These
cases merely stand for the proposition that when issues of fact exist as to whether
plaintiff’s claimed medical expenses are related to the injuries underlying the cause
of action, the question is one for the jury. As noted above, Gash agreed that the
$42,070.56 of medical expenses in question were related to the motor vehicle
accident. He cannot now argue that these expenses were unrelated.
Gash’s third contention is that the trial court erred in failing to give
liability and apportionment of fault instructions related to Brangers’ potential
negligence. An appellate court reviews a trial court’s decision of whether to give a
jury instruction under the abuse of discretion standard. Sargent v. Shaffer, 467
S.W.3d 198, 203 (Ky. 2015). “[A] trial court abuses its discretion when its
decision is arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. (citation omitted).
“[F]ault may be apportioned only among those against whom the
evidence of liability was sufficient to allow submission of the issue of fault to the
jury.” Morgan v. Scott, 291 S.W.3d 622, 634 (Ky. 2009). Here, as noted above,
especially in light of Gash’s own statements, there was no evidence Brangers was
liable for the accident. “When, under the evidence, only one party is shown to
have caused an injury, fault and its resulting liability cannot legally or rationally be
apportioned elsewhere.” Id. Therefore, the trial court did not abuse its discretion
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in declining to give liability and apportionment of fault instructions related to
Brangers’ potential negligence.
Gash argues the trial court also erred in refusing to give a mitigation
of damages instruction. Again, we disagree. “Under Kentucky law, a party is
required to mitigate his or her damages. So if a party introduces evidence that
another party has failed properly to mitigate his or her damages, the jury should be
given a failure-to-mitigate-damages instruction.” Id. at 640. Thus, the question is
“whether there was sufficient specific evidence introduced to support a mitigation
of damages instruction.” Id.
Gash points to evidence that Brangers continued to work a physically
demanding job in the months following the accident, sought no further treatment
after April 13, 2015, and refused to take prescription pain medication. He argues
that from this evidence “a jury could easily have easily found that Mr. Brangers
failed to mitigate his damages.”
However, “damages may be mitigated only in proportion to the
aggravation of injuries by the injured person’s improper conduct.” Carney v. Scott,
325 S.W.2d 343, 347 (Ky. 1959). Here, there was no evidence that Brangers’
injuries were increased in any way by his continuing to work following the
accident. As to Brangers’ failure to seek out further treatment after his aborted
surgery on April 14, 2015, Brangers testified that his previous efforts at
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conservative treatment, such as physical therapy and steroid injections, only
provided temporary relief and were not effective in treating his injuries long term.
“A victim does not fail to mitigate damages by refusing to undergo treatment that
would not significantly alleviate the disability or holds little promise for successful
recovery.” 22 AM. JUR. 2d Damages § 387 (2021) (citations omitted).
Finally, as to Brangers’ refusal to take prescription pain pills,
Brangers testified he did not like to take pain pills and was afraid he would injure
himself further if he dulled the pain to where he could not feel it. “To show that an
injured person failed to mitigate damages, a tortfeasor must demonstrate that
injured party’s conduct after the accident was unreasonable and that unreasonable
conduct resulted in aggravating the harm.” 22 AM. JUR. 2d Damages § 378 (2021)
(citations omitted). Here, there was no evidence that Brangers’ conduct in refusing
prescription pain medication was unreasonable. Brangers did take over-the-
counter pain medication as well as other medicine to treat his symptoms. Further,
there was no expert testimony that Brangers’ failure to take prescription pain
medication increased his injury. Therefore, the trial court did not abuse its
discretion in refusing to offer a failure-to-mitigate-damages instruction.
Next, Gash argues the trial court erred in failing to give his requested
admonition and jury instruction about an unrelated medical event Brangers
suffered in 2019 which rendered him disabled and resulted in his appearing at trial
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in a wheelchair. Before opening statements, the trial court gave the following
admonition:
During the trial, you will hear evidence and testimony
about a 2012 automobile accident involving Plaintiff
Anthony Brangers and Defendant John Gash, and injuries
claimed as a result of that 2012 accident. Plaintiff
Anthony Brangers also suffered a medical event in
February 2019 that resulted in medical care and
treatment, including hospitalization and the need for a
wheelchair. The February 2019 medical event was not
caused by, and not related to, the 2012 accident involving
Plaintiff Anthony Brangers and Defendant John Gash.
Gash’s requested admonition was as follows:
During the trial, you will hear evidence and testimony
about a 2012 automobile accident involving Plaintiff,
Anthony Brangers, and Defendant John Gash and injuries
claimed as a result of that 2012 accident. Plaintiff,
Anthony Brangers, also suffered a medical event in
February 2019 that resulted in medical care and
treatment, including hospitalization; nursing home care;
the need for narcotic pain medication, a wheelchair and a
walker; and ongoing pain. The February 2019 medical
event was not caused by and not related to the 2012
accident involving Plaintiff, Anthony Brangers, and
Defendant, John Gash. The February 2019 medical event
caused pain and suffering and a deterioration in the
physical condition of Plaintiff, Anthony Brangers.
Plaintiff, Anthony Brangers, is not entitled to recover,
and you shall not award, any damages, including
damages for medical expenses, pain and suffering, or loss
of enjoyment of life that are attributable to the February
2019 medical event.
Comparing the two, Gash’s requested admonition mentions Brangers’
hospitalization, nursing home care, narcotic pain medication, and ongoing pain
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from the 2019 medical event, as well as emphasizes that the jury should not award
any damages associated with the unrelated 2019 medical incident. Beyond that,
the two admonitions are almost identical. Gash argues the trial court’s admonition
was insufficient because it failed to make clear that Brangers’ “severe disabilities
and wheelchair were [not] caused by or associated with the accident at issue.”
We disagree. The trial court’s admonition specifically states the 2019
medical event resulted in Brangers’ need for a wheelchair and was not caused by
or related to the 2012 accident. “A jury is presumed to follow an admonition to
disregard evidence and the admonition thus cures any error.” Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (citation omitted).
Similarly, Gash contends the trial court erred in failing to give a jury
instruction “limiting their award of damages for medical bills or pain and suffering
to not include the February 2019 medical event.” “It is within a trial court’s
discretion to deny a requested instruction, and its decision will not be reversed
absent an abuse of that discretion.” Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229
(Ky. 2005) (citation omitted). In Kentucky, the general rule is that jury
instructions “should provide only the bare bones, which can be fleshed out by
counsel in their closing arguments if they so desire.” Id. at 228 (citation omitted).
In fact, Gash’s counsel did exactly this, re-reading the trial court’s admonition to
the jury during closing arguments concerning the 2019 incident and its
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unrelatedness to the 2012 accident and specifically requesting that the jury award
damages only related to the 2012 accident, “and nothing else.” The trial court did
not abuse its discretion in refusing to give Gash’s requested admonition on the
2019 medical event.
Finally, Gash alleges the trial court erred in failing to exclude Dr.
Shields’ testimony that the automobile accident brought Brangers’ preexisting
conditions into “disabling reality.” Our standard of review of a trial court’s
evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 577 (Ky. 2000). Gash complains Dr. Shields’ use of
the words “disabling reality” coupled with Brangers’ use of a wheelchair at trial
was highly prejudicial and misled the jurors into thinking that Brangers was
disabled because of the accident. Instead, he argues, Dr. Shields should have used
the term “aggravation.”
Here, we find the trial court did not abuse its discretion. Considering
Dr. Shields’ testimony as a whole, any risk of jury confusion was minimal. On
cross-examination, Dr. Shields testified Brangers’ pre-existing conditions were
aggravated by the accident, using Gash’s suggested term. Further, right before the
testimony in question, Dr. Shields referenced a medical record that stated
Brangers’ condition had been “aggravated.” Thus, it is unlikely, in context, that
the jurors misunderstood Dr. Shields testimony that “[Brangers] had a dormant
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condition with the arthritis which was aroused into disabling reality as a result of
the accident,” as testimony that Brangers was disabled or receiving disability.
Further, the trial court offered the following admonition to clarify any
potential confusion: “During the trial, you’ve heard testimony that the Plaintiff,
Anthony Brangers, had pre-existing conditions in his spine that were brought into
disabling reality by the 2012 accident. You will not hear evidence that the Plaintiff
has been declared to be disabled as a result of the accident.”
While Gash contends the admonition given by the trial court was
insufficient, its language was taken directly from Gash’s proposed admonition.
The additional language in the proposed instruction omitted by the trial court
merely repeated information already in evidence, namely, that the phrase
“disabling reality” did not mean that Brangers was “disabled” because of the
accident, only that his pre-existing conditions had been aggravated. The trial court
did not err in refusing to give Gash’s requested admonition.
Brangers has also filed a cross-appeal, arguing the trial court erred in
failing to direct a verdict as to all past medical expenses, including $15,406.42
related to the aborted April 2015 back surgery. We disagree. “A reviewing court
may not disturb a trial court’s decision on a motion for directed verdict unless that
decision is clearly erroneous.” Combs, 276 S.W.3d at 290 (citation omitted). We
“must ascribe to the evidence all reasonable inferences and deductions which
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support the claim of the prevailing party.” Bierman v. Klapheke, 967 S.W.2d 16,
18 (Ky. 1998).
Here, Dr. Grossfeld testified that the 2015 surgery was not caused by
the 2012 accident, but instead was related to Brangers’ degenerative disc disease.
She disagreed with Dr. Shields that Brangers’ surgery was related to conditions
aggravated by the accident. When asked whether she agreed that the purpose of
the 2015 surgery was to treat conditions that were aggravated by the motor vehicle
accident, Dr. Grossfeld testified:
the surgery based on the records I reviewed from Doctor
Shields, was to treat his underlying osteoarthritis.
Osteoarthritic flare-ups can last for periods of time, but
then they get less until the arthritis progresses. So, his
arthritis is progressive, and it was getting worse, and he
was continuing to have pain, which is why Doctor
Shields was recommending the surgery for arthritis. It
would have been different if, for example, he had an
acute finding that showed a disc herniation at the time of
the injury . . . then Doctor Shields was going to do a
microdiscectomy. That would have been directly related.
So that’s where . . . I differ . . . .
Thus, there were disputed issues of fact upon which reasonable minds
could differ as to whether Brangers’ 2015 surgery was related to the 2012 accident,
and the trial court did not err in denying a directed verdict as to Brangers’ expenses
related to the 2015 surgery.
Based on the foregoing, the judgment of the Jefferson Circuit Court is
affirmed.
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ALL CONCUR.
BRIEFS FOR BRIEF FOR APPELLEE/CROSS-
APPELLANTS/CROSS- APPELLANT:
APPELLEES:
David M. Scott
David K. Barnes Nicholas K. Haynes
Louisville, Kentucky Louisville, Kentucky
Kevin C. Burke
Jamie K. Neal
Louisville, Kentucky
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